Megha Technical and Engineer Private Limited Vs State of Tripura (Tripura High Court)
Section 70(1) of the TVAT Act 2004 says that the Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by any person appointed under subsection (1) of section 18 to assist him, is erroneous in so far as it is prejudicial to the interest of the revenue, he may, after giving the dealer or transporter an opportunity of being heard and after making or causing to be made such enquiry as he deems necessary, pass such orders thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment.
The petitioner in his reply has urged the Commissioner State Taxes to exempt him or his representative from personal appearance before him since pandemic situation was prevailing causing him huge business loss and sought for release of the excess amount paid, but the Superintendent of State Taxes, Agartala acting beyond section 70(1) of the Act has passed the suo motu order without any proper explanation or without indicating any error in the assessment of the assessing authority. Moreover, Commissioner State Taxes, acting as revisional authority without verifying the records had passed a non-speaking order so as to establish that the Commissioner State Taxes is not convinced with the assessment order.
In the case in hand, we are of the considered view that there is no jurisdictional error in the assessment of the assessing authority, and accordingly, the Commissioner State Taxes has acted beyond section 70(1) of the Act. This casual approach of the Commissioner State Taxes cannot be permitted since he is trying only to prevent the payment of refund amount to the petitioner.
The respondent authorities acting as quasi judiciary authority by invoking the power under statute are expected to act judiciously, but they are not expected to work as money generating authority. Very often it is noticed by this court that the orders are passed by the respondent authorities in an arbitrary manner which is driving the Tax-payers/dealers to file appeals by depositing 50% of the disputed tax while filing statutory appeals. But for the casual approach of the respondent-authorities, a Tax-payer/dealer cannot be put to hardship. Such action of the respondent-authorities cannot be appreciated. The impugned order dated 21.05.2020 is due of its nature. This is nothing else, but a burden on the business class. This court finds that the officers need to be more vigilant and tax-payers friendly. Accordingly, a cost of Rs. 25,000/- is imposed upon the revisional authority, and the said amount to be paid from his salary to the credit of Tripura High Court Bar Association for passing such orders.
FULL TEXT OF THE JUDGMENT/ORDER OF TRIPURA HIGH COURT
Heard Mr. Ashok Saraf, learned senior counsel assisted by Mr. P. Baruah, learned counsel and Mr. Kousik Roy, learned counsel appearing for the petitioner as well as Mr. K. Dey, learned Additional GA, appearing on behalf of the respondents.
2. By means of filing this writ petition, the petitioner has challenged the impugned show cause notice dated 21.05.2020 (Annexure V to the writ petition) and order dated 10.12.2020 (Annexure II to the writ petition) issued under Section 70(1) of the Tripura VAT Act, 2004 by the respondent no. 2 herein.
3. Briefly stated, the petitioner submitted its returns under TVAT Act, 2004 for the assessment years 2015-16, 2016-17 and 2017-18 (upto June, 2017). The petitioners being insisted by the assessing authority had paid advance tax in the month of March and the assessment was completed by respondent no. 3 vide order of assessment dated 03.05.2019 for the assessment years 2015-16 to 2017-18 under Section 31 of the TVAT Act, 2004 and it was recorded that the petitioner had paid Rs. 33,32,202/- as excess tax amount for the assessment year 2016-17 and a part of the same was adjusted against the tax liability for the year 2017-18. The further case of the petitioner is that after adjustment of the amount of tax refundable for the assessment year 2016-17, the total amount refundable to the petitioner was Rs. 30,25,031/-. Accordingly, the petitioner prayed for refund of the excess amount paid, but he received a notice dated 10.12.2020 from respondent no. 2 in exercise of power under Section 70(1) of the Act wherein it was stated that the petitioner had made excess payment of tax to the tune of Rs. 30,25,031/-. The petitioner submitted his reply dated 11.06.2020, and on receipt of the same, respondent no. 2 issued the impugned notice dated 21.05.2020 upon the petitioner
4. During arguments, Dr. Saraf, learned senior counsel appearing for the petitioner has argued that there was no jurisdictional error in completing the assessment and thus the order dated 03.05.2019 passed by the Commissioner of Taxes is absolutely illegal. Learned senior counsel has further submitted that the Commissioner of Taxes without assuming jurisdiction under Section 70(1) of the Act the order has been passed. Learned senior counsel has further submitted that there is no error in the original assessment done by the assessing officer. Learned senior counsel has also submitted that there was no prejudicial to the interest of the State Revenue. Learned senior counsel has lastly urged this court to set aside the impugned show-cause notice dated 21.05.2020 and the impugned order dated 10.12.2020 passed by the respondent no. 2.
5. Learned Additional GA has submitted that the show-cause notice dated 21.05.2020 and the order dated 10.12.2020 passed by the respondent no. 2 are not illegal and the same had been passed within the ambit of law.
6. Considered the submission of learned counsel appearing for the parties. We have also perused the record.
7. From the Assessment Order dated 03.05.2019 issued by the respondent no. 3, it is evident that the petitioner has paid tax for the year 2017-18 (upto 30.06.2017) to the tune of Rs. 33,32,202/-. The computation is reproduced here-in-below:
“COMPUTATION
